Attorney General’s Opinion Needn’t Stop Ranked Choice

Chris Powell

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With his excellent and even fascinating review last week, Connecticut Attorney General William Tong did not oppose ranked-choice voting in principle or declare it surely unconstitutional. He concluded that the concept’s constitutionality is “a close call” and so it shouldn’t be enacted without an amendment to the state Constitution.

Caution is usually good advice for a lawyer to give, and with the basic format of elections at stake, it would be risky to proceed without assurance that the state Supreme Court wouldn’t interfere.

But Connecticut should continue to consider ranked-choice voting anyway. For while the constitutional issues identified by the attorney general are legitimate, they are at best technical and at worst hair splitting. Indeed, the attorney general notes that court decisions around the country can be found on both sides of his concerns.

Ranked-choice voting invites voters to list candidates for an office in order of preference — first choice, second choice, and so forth. If no candidate receives a majority of first-choice votes, the trailing candidate or candidates are removed from the tabulation, their first-choice votes are transferred to the candidates their supporters designated as second choices, and a new tabulation is done. Vote transfers and new tabulations continue until a candidate receives a majority.

This is simple enough when there are only three or four candidates. With more candidates it can get complicated and confusing.

The attorney general’s biggest concern about ranked-choice voting’s constitutionality is that the system could be construed as allowing some people to vote twice or more. But it is better construed not as letting some people vote multiple times but as letting all people change their vote.

Also of concern to the attorney general is the state Constitution’s requirement for municipal officials to announce vote totals upon tabulation. But if multiple tabulations are required to achieve a majority, vote counting will take longer and municipal officials may be overwhelmed. For offices representing more than one municipality, all vote counting might have to be transferred to the secretary of the state’s office, since the trailing candidates to be removed from a second tabulation could not be identified on the basis of the vote in just one municipality.

While the attorney general writes that Connecticut has no experience and no court precedents with ranked-choice voting, he reports that throughout the 1800s the state did want its top officials to get a majority of the vote rather than just a plurality. The state’s 1818 constitution required the winner of the election for governor to get a majority of the vote and empowered the General Assembly to choose the winner if there was no majority. In the 1830s the Constitution was amended to add similar provisions for the other statewide constitutional officers.

But the requirement to achieve a majority was not accompanied by a mechanism like ranked-choice voting or runoff elections to assure such majorities. The result was a long disaster. Tong notes that between 1818 and 1900 the election for governor defaulted to the legislature 14 times, the election for secretary of the state 18 times, comptroller 15 times, and treasurer 14 times.

The disputed gubernatorial election of 1890 practically incapacitated state government, and by 1901 both the legislature and the voters were exhausted by the majority requirement and repealed it with another constitutional amendment, leaving the state constitutional officers to be elected by plurality.

But several times in recent decades Connecticut has elected governors and U.S. senators with less than a majority vote when a true gauging of public sentiment would have elected someone else and produced much different policy. Lacking ranked-choice voting, this year’s presidential election well may give the country a leader most people don’t want.

If ranked-choice voting is considered too complicated to implement, Connecticut at least could give itself ordinary runoff elections for the top state offices when no candidate has received a majority of votes, with the runoff limited to the top two finishers in the first election. This would be more expensive than current practice but also more democratic and easy to understand. 

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Chris Powell has written about Connecticut government and politics for many years. (CPowell@cox.net